Private sector tracking can be divided between three types of companies. One consists of those companies that facilitate commercial transactions, the ostensible bank like Visa or PayPal. A second consists of the ad agencies (most notably Google) that capture personal data through “click-throughs” and “cookies.” Finally, private data aggregators like ChoicePoint, Intelius, Lexis Nexis and US Search Profile that collect personal data, repackage it and offering it for sale. They acquire, slice & dice your personal information as if they were running sausage factories – and your personal life is the unlucky pig Together, they prove that nothing private is secret: the whole world is watching!
These companies track one’s every keystroke, every order and bill payment one makes, every word and/or phrase in one’s emails, even one’s every mobile movement through GPS tracking. Data capture involves everything from your personal Social Security number, phone calls, arrest record, credit card transactions and online viewing preferences as well as your medical and insurance records and even personal prescriptions.
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The Constitution was adopted on September 17, 1787, and reserved privacy to a citizen’s person, home and property; the 4th Amendment prohibits illegal search and seizure. In the intervening 225 years, the notion of personal privacy has been radically transformed, especially in light of technological advances and the globalization of the marketplace. It was written in a pre-industrial, agrarian era and informs decisions made in a post-modern world.
Today, the Supreme Court’s 1967 decision, Katz v. U.S. (389 US 347), is all but forgotten. It established a link between the modes of telecommunication and personal privacy that illuminates today’s debate over the limits of privacy in the post-modern age.
In this case, Charles Katz used a public pay phone booth to place illegal gambling bets. In writing for the majority, Justice Potter Stewart noted, “One who occupies [a telephone booth], shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world.”
Does someone making a call on a wireless device today have comparable rights as someone in a phone booth a half-century ago? Are the keystrokes an individual enters on a personal computer or a smartphone equivalent to an old-fashion voice call? And what of the personal information an individual provides to a 3rd party like a credit-card company, insurance company and telephone, wireless and Internet service provider?
The Katz decision was farsighted for the mid-20th century and one can only hope that its insight will inform the debate over 21st century digital technology and communications. More so, it serves as an analogy for contemporary notions of social life and their reasonable expectations of privacy.
However, war has long provided the rationale for the imposition of state tyranny. World War I hysteria found expression in the Espionage Act of 1917 and the Palmer Raids of 1920; World War II hysteria resulted in the mass roundup and imprisonment of 120,000 Japanese and Japanese-Americans; the Cold War gave us anti-Communism.
One consequence of 9/11 is that Constitutionally protected privacy rights have come under increasing threat from both private corporations and government entities. These two domains, the private and the state, traditionally function as separate, if not parallel, worlds. Since 9/11, both domains have not only been very busy collecting raw digital and other information on ordinary Americans, but have increasingly joined forces.
In the marketplace of valued data, one’s digital self (or selves) is increasingly being sliced and diced, collated and repackaged, as an ever more exact commodity. Nothing about a person’s electronic self, whether a credit-card purchase, parking ticket, GPS location, medical record or viewing practices, is private.
The military-industrial complex formalized the fiction that separates the corporate and the federal, serving as the revolving door for deals mae and rewarded. A permanent militarized state is now engaged in wars against “terrorists,” good-old foreign cyber-espionage with China, Iran, Russia and others, battles with criminal gangs, cyber hackers (like Anonymous) and whistle-blowers. The same technologies being employed to fight the war on terror internationally are being imposed on Americans in their most private, personal lives.
The police-corporate surveillance “complex” is being consolidated, drawing ever-closer corporate tracking and government surveillance. These entities collect data sent from different devices, that takes different forms and use different distribution networks. Such devices include a phone or smartphone, PC or tablet; they are separate from the network one employs, whether wireline, wireless or cable; and are distinct from the type of information one communicates, from email message, commercial transaction and social network connection to video download and medical records. Nevertheless, in our increasingly digitally mediated universe, all 1s and 0s are alike.
Today, nearly all the personal data gathering that takes place does so under one of two conditions. First, it is done by a consumer under the “terms of use” required by a take-it-or-leave-it offer for whatever service is offered (e.g., making a call, use of an iPhone, doing a Google search, ordering a book through Amazon). Second, it is ostensibly done “legally” by a law enforcement agency with a court order (or without such legal niceties).
The line between the corporate and the government is eroding. There seems to be a widening two-way street between law-enforcement entities (both federal or local) and private companies over information sharing. One form of working relation is ostensibly passive, a fee for service arrangement, as when a telco provides a user’s GPS tracking data or Google supplies user data. The information is provided when the company receives a court-approved request. However, as the ACLU found, cordial relations between law enforcement entities and telecoms often bypass legal niceties.
A second form of information sharing comes from the more traditional out-sourcing deal, the apparent collusion between a federal government agency and one of its former spymasters, former CIA director Richard Helms. His Virginia-based company, Abraxas Corp., created TrapWire correlates video surveillance with other data, including criminal and terrorist watch lists, facial recognition profiles, license plate information, stolen vehicles reports and other event data. It was acquired by San Diego-based, Cubic Corp., in 2010 for $124 million in cash.
A third form is the partnership, a for-profit venture between a local government and a major corporation. Welcome to Domain Awareness System in which the NYPD and Microsoft entered into a commercial venture. A flurry of press releases and TV appearances promoted the venture of Mayor Bloomberg 21st century capitalism. It would be interesting to examine the final financial projections to see what New York’s rate-of-return would be given its estimated $30 to $40 million investment.
Earlier this year, in Jones v. U.S., the Supreme Court ruled that the police are required to get a warrant before attaching a Global Position System (GPS) device a suspect’s car. In its decision, the Court rejected the Obama Justice Department’s claim that citizens have no expectation of privacy in public places. This decision may provide the rationale for a redrawing of the lines protecting privacy, communication and personal information.
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